Sanchez v. Dist. of Columbia, 13–CT–128.
Decision Date | 06 November 2014 |
Docket Number | No. 13–CT–128.,13–CT–128. |
Citation | 102 A.3d 1157 |
Court | D.C. Court of Appeals |
Parties | Cynthia SANCHEZ, Appellant, v. DISTRICT OF COLUMBIA, Appellee. |
Grey Gardner, Washington, DC, for appellant.
John J. Woykovsky, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.
Before BECKWITH and McLEESE, Associate Judges, and NEWMAN, Senior Judge.
In this appeal, we are confronted with the contention that a trial judge abused her discretion in sua sponte invoking the “rule on witnesses” to exclude an expert witness called by the defense from hearing a portion of the testimony of the principal fact and expert witness called by the government. We find an “erroneous exercise of discretion,” and the prejudice required to constitute an “abuse” thereof.1 Thus, we reverse.
In a bench trial, Sanchez was tried for driving under the influence, D.C.Code § 50–2201.05(b)(1) (2009). The government's chief witness, Carll, a uniformed member of the U.S. Capitol Police, testified both as a fact witness and as an expert. On direct examination, he testified to the events leading to his stopping the vehicle that Sanchez was driving and that caused him to order her out of the vehicle. He testified that he administered three sobriety tests: the horizontal gaze nystagmus
(HGN); the walk and turn; and the one-leg stand.2 He described Sanchez's performances on these tests, which, coupled with the odor of alcohol on her breath, led him to conclude that she was operating her vehicle while under the influence. He arrested her. At the police station, Sanchez was advised by the officer who had transported her, Fleming, of the Implied Consent Act. She declined to be tested. The form reflecting her so declining was admitted into evidence.
After Carll testified on direct examination, counsel for Sanchez commenced cross-examination concerning his methodology in administering the field sobriety tests. He was soon interrupted when the trial judge summoned both counsel to the bench and stated:
Counsel informed the court that he intended to have Carll demonstrate in as accurate and minute detail as possible exactly how he administered the three tests; that direct examination had not done so; that there was no video recordation of the testing; and that the defense expert, Palacios, needed to see Carll's demonstrations and further testimony in order to opine thereafter whether the tests had been performed in the proper manner.
Counsel further attempted to inform the court of his need for the presence of the defense expert to assist him in formulating further cross-examination based on Carll's answers. This trial judge cut off the attempt to proffer and ruled:
I don't think he should be here to hear the witness's answers to your cross. You can ask him on direct. I think it gives you a completely unfair tactical advantage to have him sitting here on cross-examination when you can ask him questions on direct and the Government would get to cross him and determine what his answers will be.
Counsel's subsequent attempts to have the trial judge reconsider this ruling were equally futile. As she informed counsel, “you're just going to have to make do with those circumstances the best way you can.”
Palacios testified. He described the proper methodology for administering each of the tests. He opined that there were a number of defects with Carll's methodology. He further opined that based on the other testimony in the government's case—including the testimony of Fleming (the transport officer) that he observed no signs of impairment during the twenty or so minutes he interacted with Sanchez—Carll “misinterpreted or mis-scored” the vertical nystagmus
portion of the HGN test. He stated he could not be one hundred percent sure because of “not being able to see the officer administer the test.” However, if the tests are not administered properly “the validity of the test is compromised.”
The defense presented a number of fact witnesses, including Sanchez, all of whose testimony was exculpatory. In addition, the defense called a second expert witness, Lappas, a forensic toxicologist who testified on a “common” and “accepted methodology” of retrograde extrapolation, which he described as a “method of estimating what a blood alcohol level concentration in blood was at some time prior to the time the analysis was conducted.” Given a hypothetical fact pattern tracking the defense evidence, he opined that the blood alcohol level of such a person at the time of Sanchez's arrest would have been between 0 and 0.04.
As early as 1943, we held that a trial judge has discretion to exclude non-party witnesses from hearing testimony at trial before testifying themselves, Bedrosian v. Wong Kok Chung, 33 A.2d 811, 812 (D.C.1943) -the so-called “rule on witnesses.” We have reaffirmed this ruling repeatedly. See, e.g., Garmon v. United States, 684 A.2d 327, 328–29 (D.C.1996) ; (James) Johnson v. District of Columbia, 655 A.2d 316, 317–18 (D.C.1995) (per curiam); Matthews v. United States, 267 A.2d 826, 829 (D.C.1970). We will reverse that decision only upon a showing of an “abuse of discretion.” Garmon, 684 A.2d at 328–29. See generally ( James W.) Johnson, supra, 398 A.2d at 365–66 ( ).
We have also distinguished the testimony of “expert” witnesses and “fact” witnesses. ( James) Johnson, supra, 655 A.2d at 318–19 ; compare Fed.R.Evid. 615 ( ), with Fed.R.Evid. 703 (1972) (). Our cases are in accord with this portion of Rule 703. See, e.g., In re Amey, 40 A.3d 902, 910 (D.C.2012) ( ); In re M.L., 28 A.3d 520, 530 n. 21 (D.C.2011) (same). What we said in (James) Johnson, supra, about excluding expert witnesses bears repeating at length:
655 A.2d at 318–19 (alterations in original) (footnotes omitted) (parallel citations omitted).
We reiterated this in Garmon, supra, 684 A.2d at 328–29 & n. 2. We repeat it yet again here.
Here, the trial judge's reasons for excluding the defense expert are at odds with the rationale of permitting an expert to base an opinion on “facts made known to the expert at ... the hearing.” Fed.R.Evid. 703 (1972). This is particularly so in cases, including this case, in which the trial was a bench trial. See McKenzie v. United States, 659 A.2d 838, 841 (D.C.1995) ( ); ( Melvyn A.) Johnson v. United...
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...of its results. Indeed, one opinion of this court refers to the "vertical nystagmus portion of the HGN test." Sanchez v. District of Columbia , 102 A.3d 1157, 1160 (D.C. 2014). As courts have recognized, and as appellant asserts, both the HGN and VGN test involve the use of "scientific proc......
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...of a case where a trial court was reversed for excluding a defense expert during cross-examination, see Sanchez v. District of Columbia , 102 A.3d 1157 (DC Court of Appeals 2014). At the defendant’s bench trial for driving under the influence, the prosecution called the arresting officer to......